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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Statutes Amendment (National Energy Retail Law)
Bill 2010
A BILL FOR
An Act to amend the Australian
Energy Market Commission Establishment Act 2004, the National
Electricity (South Australia) Act 1996 and the National
Gas (South Australia) Act 2008.
Contents
Part 1—Preliminary
1Short
title
2Commencement
3Amendment provisions
Part 2—Amendment
of Australian Energy Market Commission Establishment
Act 2004
4Amendment of
section 3—Interpretation
Part 3—Amendment
of National Electricity Law
5Amendment of section
2—Definitions
6Substitution of section
2A
2AMeaning of access
dispute
7Insertion of section
2AA
2AAMeaning of civil
penalty provision and conduct provision
8Amendment of section 2D—Meaning
of regulatory obligation or requirement
9Insertion of section
6A
6ANominated
distributors
10Insertion of section
10A
10ACorporations Act
displacement
11Amendment of section 11—Electricity
market activities in this jurisdiction
12Amendment of section 14A—Regulated
transmission system operator must comply with transmission
determination
13Amendment of section 14B—Regulated
distribution system operator must comply with distribution
determination
14Amendment of section 15—Functions and
powers of AER
15Amendment of section 16—Manner in which
AER performs AER economic regulatory functions or powers
16Amendment of
section 28N—Compliance with regulatory information notice that is
served
17Amendment of section 28O—Compliance with
general regulatory information order
18Amendment of section 28V—Preparation of
network service provider performance reports
19Substitution of section
28ZD
28ZDUse of information
provided under a notice under section 28 or a regulatory information
instrument
20Amendment of section 28ZF—AER
enforcement guidelines
21Insertion of sections 28ZH and
28ZI
28ZHSingle
documentation
28ZIUse
of information
22Amendment of section 34—Rule making
powers
23Amendment of section 49—AEMO's statutory
functions
24Amendment of section 50D—Network
agreement
25Amendment of section
50F—Augmentation
26Amendment of section 53C—Compliance with
market information instrument
27Amendment of section 54C—Disclosure
required or permitted by law etc
28Repeal of section 58
29Insertion of Part 6 Division
1A
Division 1A—Enforceable
undertakings
59AEnforceable
undertakings
30Amendment of section 60—Time limit
within which AER may institute proceedings
31Amendment of section 61—Proceedings
for breaches of a provision of this Law, the Regulations or the Rules that are
not offences
32Insertion of sections 61A and
61B
61AProceedings for
declaration that a person is in breach of a conduct
provision
61BActions
for damages by persons for breach of conduct provisions
33Amendment of
section 64—Matters for which there must be regard in determining amount of
civil penalty
34Amendment of section 67—Conduct in
breach of more than one civil penalty provision
35Substitution of section
68
68Persons involved in
breach of civil penalty provision or conduct
provision
68AAttempt
to breach civil penalty provision
36Amendment of section 69—Civil
penalties payable to the Commonwealth
37Amendment of section 74—Power to serve a
notice
38Amendment of section 75—Form of
notice
39Amendment of section 79—Withdrawal of
notice
40Amendment of section 81—Payment expiates
breach of civil penalty provision
41Amendment of section 83—Conduct in
breach of more than one civil penalty provision
42Substitution of section
86
86Corporations also in
breach if officers and employees are in breach
43Insertion of section
90D
90DSouth Australian
Minister may make initial Rules relating to implementation of NERL and
NERR
44Amendment of section 91B—AEMC may make
Rules that are consequential to a Rule request
45Amendment of section
120—Immunity in relation to failure to supply electricity
46Amendment of
section 136—Compliance with access determination
47Amendment of section
157—Preventing or hindering access
48Amendment of Schedule 1—Subject
matter for the National Electricity Rules
49Amendment of Schedule 3—Savings and
transitionals
Part 11—Application of National Energy
Retail Law amendments
24Application of National Energy Retail Law
amendments
Part 4—Amendment
of National Gas Law
50Amendment of section
2—Definitions
51Amendment of section 6—Meaning of
regulatory obligation or requirement
52Insertion of section
8A
8A—Nominated
distributors
53Insertion of Chapter 1 Part 5
Part 5—Corporations Act
displacement
26ACorporations
Act displacement
54Amendment of section 64—Preparation of
service provider performance reports
55Substitution of section
66
66Use of information
provided under a notice under section 42 or a regulatory information
instrument
56Amendment of section 68—AER enforcement
guidelines
57Insertion of sections 68A and
68B
68ASingle
documentation
68BUse
of information
58Amendment of section 74—Subject matter
for National Gas Rules
59Amendment of section 91A—AEMO's
statutory functions
60Amendment of section 91GC—Disclosure
required or permitted by law etc
61Insertion of section
178A
178AApplication of this
Chapter to disputes arising under the Rules
62Insertion of Chapter 8, Part
1A
Part 1A—Enforceable
undertakings
230AEnforceable
undertakings
63Amendment of section 232—Proceedings for
declaration that a person is in breach of a conduct provision
64Insertion of
section 294C
294CSouth
Australian Minister may make initial Rules and Retail Market Procedures relating
to implementation of NERL and NERR
65Amendment of section 297—AEMC may
make Rules that are consequential to a Rule request
66Amendment of Schedule
1—Subject matter for the National Gas Rules
67Amendment of Schedule
3—Savings and transitionals
Part 13—Application of National Energy
Retail Law amendments
88Application of National Energy Retail Law
amendments
Schedule 1—Statute
Law Revision
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Statutes Amendment (National Energy Retail
Law) Act 2010.
(1) This Act will come into operation on a day to be fixed by
proclamation.
(2) Section 7(5) of the Acts
Interpretation Act 1915 does not apply to this Act or to a
provision of this Act.
In this Act—
(a) a provision in
Part 2 amends the
Australian
Energy Market Commission Establishment Act 2004; and
(b) a provision in
Part 3 amends the
National Electricity Law set out in the Schedule to the National
Electricity (South Australia) Act 1996; and
(c) a provision in
Part 4 amends the
National Gas Law set out in the Schedule to the National
Gas (South Australia) Act 2008; and
(d) the National
Electricity (South Australia) Act 1996 and the National
Gas (South Australia) Act 2008 are further amended in the manner
indicated in
Schedule 1.
Part 2—Amendment
of Australian Energy Market Commission
Establishment Act 2004
4—Amendment
of section 3—Interpretation
(1) Section 3(1), definition of National Energy
Law—after paragraph (h) insert:
or
(i) a National Energy Retail Law Application Act; or
(j) the National Energy Retail Law; or
(k) the National
Energy Retail Regulations; or
(l) the National
Energy Retail Rules;
(2) Section 3(1)—after the definition of National Energy
Law insert:
National Energy Retail Law Application Act
means—
(a) the National
Energy Retail Law (South Australia) Act 2010; or
(b) any other Act of a State or Territory of the Commonwealth that applies
the National Energy Retail Law set out in the Schedule to the National
Energy Retail Law (South Australia) Act 2010, with or without
modification and whether as in force at a particular time or as in force for the
time being, as a law of that jurisdiction;
National Energy Retail Law means the National Energy
Retail Law set out in the Schedule to the
National
Energy Retail Law (South Australia) Act 2010 applying as a law of South
Australia or as applied, with or without modification and whether as in force at
a particular time or as in force for the time being, as a law of another
jurisdiction;
National Energy Retail Regulations means the National
Energy Retail Regulations as defined in section 2 of the National
Energy Retail Law;
National Energy Retail Rules means the National
Energy Retail Rules as defined in section 2 of the National
Energy Retail Law;
Part 3—Amendment
of National Electricity
Law
5—Amendment
of section 2—Definitions
(1) Section 2, definition of additional Minister initiated
Rules—delete "section 90B or section 90C" and
substitute:
90B, 90C or 90D
(2) Section 2—insert the following definitions in alphabetical
order:
civil penalty means—
(a) in the case of a breach of a civil penalty provision (other than a
rebidding civil penalty provision) by—
(i) a natural person—
(A) an amount not exceeding $20 000; and
(B) an amount not exceeding $2 000 for every day during which the
breach continues; or
(ii) a body corporate—
(A) an amount not exceeding $100 000; and
(B) an amount not exceeding $10 000 for every day during which the
breach continues; or
(b) in the case of a breach of a rebidding civil penalty provision by any
person—
(i) an amount not exceeding $1 000 000; and
(ii) an amount not exceeding $50 000 for every day during which the
breach continues;
civil penalty provision—see section 2AA(1);
conduct provision—see section 2AA(2);
connection service means a connection service within the
meaning of the Rules;
energy ombudsman has the same meaning as in the National
Energy Retail Law;
National Energy Retail Law means the National Energy
Retail Law set out in the Schedule to the
National
Energy Retail Law (South Australia) Act 2010 of South
Australia;
National Energy Retail Rules has the same meaning as in the
National Energy Retail Law;
National Gas Law means the National Gas Law set out in
the Schedule to the
National
Gas (South Australia) Act 2008 of South Australia;
National Gas Rules has the same meaning as in the National
Gas Law;
rebidding civil penalty provision means a provision of the
Rules that is prescribed by the Regulations to be a rebidding civil penalty
provision;
retail customer means a person to whom electricity is sold by
a retailer, and supplied in respect of connection points, for the premises of
the person, and includes a person (or a person who is of a class of persons)
prescribed by the Rules for the purposes of this definition;
retailer means a person who is the holder of a retailer
authorisation issued under the National Energy Retail Law in respect of
the sale of electricity;
Rule dispute means a dispute between persons in relation to a
matter or thing arising under the Rules in respect of which the Rules provide
that the dispute must be resolved in accordance with the Rules;
(3) Section 2, definition of end user—delete the
definition and substitute:
end user means a person who acquires electricity for
consumption purposes, and includes a retail customer;
(4) Section 2, definitions of recognised energy industry
ombudsman and relevant participant—delete the
definitions
(5) Section 2—after its present contents (now to be designated as
subsection (1)) insert:
(2) A reference in this Law to an end user includes a reference to a
prospective end user.
Section 2A—delete the section and substitute:
2A—Meaning of access dispute
An access dispute is—
(a) a dispute
between a network service user (or prospective network service user) and a
network service provider about an aspect of access to an electricity network
service specified by the Rules to be an aspect to which Part 10 applies;
or
(b) without limiting
paragraph (a)—a
dispute between a retail customer (or other person specified by the Rules) and a
regulated distribution system operator about an aspect of access to a connection
service specified by the Rules to be an aspect to which Part 10
applies.
After section 2A insert:
2AA—Meaning of civil penalty provision and conduct
provision
(1) A civil penalty provision is—
(a) a provision of this Law specified in the Table at the foot of this
subsection; or
(b) a rebidding civil penalty provision; or
(c) a provision of this Law (other than an offence provision) or the Rules
that is prescribed by the Regulations to be a civil penalty provision.
Table
Provision |
Section heading |
---|---|
Section 11(1), (2), (3) and (4) |
Electricity market activities in this jurisdiction |
Section 14A |
Regulated transmission system operator must comply with transmission
determination |
Section 14B |
Regulated distribution system operator must comply with distribution
determination |
Section 28N |
Compliance with regulatory information notice that is served |
Section 28O |
Compliance with general regulatory information order |
Section 50D(1) |
Network agreement |
Section 50F(1), (4) and (5) |
Augmentation |
Section 53C(3) and (4 |
Compliance with market information instrument |
Section 136 |
Compliance with access determination |
Section 157(1) |
Preventing or hindering access |
(2) A conduct provision is a provision of this Law (other than an offence
provision) or the Rules that is prescribed by the Regulations to be a conduct
provision.
8—Amendment
of section 2D—Meaning of regulatory obligation or
requirement
(1) Section 2D(1)(b)—after subparagraph (i) insert:
(ia) the National Energy Retail Law or the National
Energy Retail Rules; or
(2) Section 2D(2)(b)—after "the Rules" insert:
, the National Energy Retail Law or the National
Energy Retail Rules
(3) Section 2D(2), Note—delete the Note and substitute:
Notes—
1 See also section 7A(2)(b).
2 The RoLR cost recovery scheme is dealt with under Part 6 of the
National Energy Retail Law.
After section 6 insert:
6A—Nominated distributors
(1) The regulations under the application Act of a participating
jurisdiction (a local regulation) may—
(a) nominate an entity, being an entity that is licensed or otherwise
authorised under the jurisdictional electricity legislation of that jurisdiction
to operate a distribution system but that is not a regulated distribution system
operator (within the meaning of this Law) in respect of that distribution
system, as an entity to which this section applies (the nominated
distributor); and
(b) apply to the nominated distributor specified provisions of the Rules
that relate to the following matters:
(i) the provision of connection services to retail customers;
(ii) retail support obligations between regulated distribution system
operators and retailers;
(iii) credit support arrangements between regulated distribution system
operators and retailers.
(2) The application of any such specified provisions of the Rules to the
nominated distributor is subject to such modifications as may be specified in
the local regulation.
(3) The nominated distributor—
(a) must comply with the Rules to the extent that the Rules are applied by
the local regulation to the nominated distributor; and
(b) may, to the extent that the Rules apply to the nominated distributor,
be proceeded against under this Law for any breach of those Rules.
(4) A nomination of an entity by a local regulation may be made
for—
(a) the whole or a specified part of the geographical area of a
jurisdiction; or
(b) the whole or a specified part of a distribution system that is owned,
controlled or operated by the entity,
or for both.
(5) The Minister responsible for administering the application Act (other
than the application Act of South Australia) under which a local regulation
referred to in this section is made is to make arrangements for notice of the
making and publication of the regulation to be published for information in the
South Australian Government Gazette.
After section 10 insert:
10A—Corporations Act
displacement
(1) The Regulations may declare a relevant provision to be a Corporations
legislation displacement provision for the purposes of section 5G of the
Corporations Act 2001 of the Commonwealth in relation to the provisions
of Chapter 5 of that Act.
(2) In this section—
relevant provision means a provision of the Rules that
relates to any of the following:
(a) the application by AEMO of money in any security deposit
fund;
(b) the functions of AEMO under procedures relating to defaults by
retailers;
(c) the application (or drawing on) of credit support held by a regulated
distribution system operator in respect of a retailer who is the subject of a
RoLR event within the meaning of Part 6 of the National Energy Retail
Law.
11—Amendment
of section 11—Electricity market activities in this
jurisdiction
Section 11, notes to subsections (1)—(4)—delete "section 58"
wherever occurring and substitute in each case:
section 2AA(1)
12—Amendment
of section 14A—Regulated transmission system operator must comply with
transmission determination
Section 14A, note—delete "section 58" and substitute:
section 2AA(1)
13—Amendment
of section 14B—Regulated distribution system operator must comply with
distribution determination
Section 14B, note—delete "section 58" and substitute:
section 2AA(1)
14—Amendment
of section 15—Functions and powers of AER
Section 15(1)(c)(i)—delete "relevant participants" and
substitute:
persons
15—Amendment
of section 16—Manner in which AER performs AER economic regulatory
functions or powers
Section 16(2)(b)—after "economic" insert:
regulatory
16—Amendment
of section 28N—Compliance with regulatory information notice that is
served
Section 28N—at the end of the section insert:
Note—
This section is a civil penalty provision.
17—Amendment
of section 28O—Compliance with general regulatory information
order
Section 28O—at the end of the section insert:
Note—
This section is a civil penalty provision.
18—Amendment
of section 28V—Preparation of network service provider performance
reports
Section 28V—after subsection (4) insert:
(4A) Any information that is used to prepare a report under this section
may be used by the AER in preparing any report under the National Energy
Retail Law or the
National
Energy Retail Rules, including (but not limited to) a retail market
performance report under Division 2 of Part 12 of that Law.
19—Substitution
of section 28ZD
Section 28ZD—delete the section and substitute:
28ZD—Use of information provided under a notice
under section 28 or a regulatory information instrument
The AER may use information provided to it by a person in compliance with a
notice under section 28 or a regulatory information instrument for any purposes
connected with the performance or exercise of a function or power of the AER
under—
(a) this Law or the Rules; or
(b) the National Gas Law or the National
Gas Rules; or
(c) the National Energy Retail Law or the National
Energy Retail Rules.
20—Amendment
of section 28ZF—AER enforcement guidelines
Section 28ZF(1)—after paragraph (b) insert:
or
(c) accepting an enforceable undertaking under section 59A.
21—Insertion
of sections 28ZH and 28ZI
After section 28ZG insert:
28ZH—Single documentation
(1) This section applies if the AER is authorised to prepare a document
under this Law or the Rules for a purpose and is also authorised to prepare a
document or documents under any of the following:
(a) the National Gas Law;
(b) the National
Gas Rules;
(c) the National Energy Retail Law;
(d) the National
Energy Retail Rules,
for the same or a similar, related or corresponding purpose.
(2) The AER may satisfy the requirements of this Law and the Rules
regarding the document under this Law and the Rules by preparing and making (and
where relevant publishing) a single document.
Note—
See also section 68A of the National Gas Law and section 219 of the
National Energy Retail Law.
28ZI—Use of information
(1) The AER may use the information obtained under this Law or the Rules
for a purpose connected with the performance or exercise of a function or power
of the AER under any of the following:
(a) the National Gas Law;
(b) the National
Gas Rules;
(c) the National Energy Retail Law;
(d) the National
Energy Retail Rules.
(2) The AER may use the information obtained under any such Law or Rules
for a purpose connected with the performance or exercise of a function or power
of the AER under this Law or the Rules.
(3) This section does not limit any other provision of this Law that
provides for the use of information obtained under this Law or the
Rules.
Note—
See also section 68B of the National Gas Law and section 220 of the
National Energy Retail Law.
22—Amendment
of section 34—Rule making powers
(1) Section 34(1)(a)—after subparagraph (iii) insert:
(iv) the provision of connection services to retail customers;
and
(2) Section 34(1)—after paragraph (a) insert:
(aa) facilitating and supporting the provision of services to retail
customers; and
(3) Section 34(3)—after paragraph (f) insert:
(fa) provide for procedures governing the operation of the national
electricity market and the sale and supply of electricity to retail
customers;
(4) Section 34(3)(h)(i)—delete "or (f)" and substitute:
, (f) or (fa)
23—Amendment
of section 49—AEMO's statutory functions
Section 49(1)—after Note 3 insert:
4 AEMO has
additional functions and powers under the National Energy Retail Law and
the
National
Energy Retail Rules.
24—Amendment
of section 50D—Network agreement
Section 50D(1)—at the end of the subsection insert:
Note—
Subsection (1) is a civil penalty provision.
25—Amendment
of section 50F—Augmentation
Section 50F, note at the end of the section—delete "section 58" and
substitute:
section 2AA(1)
26—Amendment
of section 53C—Compliance with market information
instrument
(1) Section 53C(3)—at the end of the subsection insert:
Note—
Subsection (3) is a civil penalty provision.
(2) Section 53C(4)—at the end of the subsection insert:
Note—
Subsection (4) is a civil penalty provision.
27—Amendment
of section 54C—Disclosure required or permitted by law
etc
Section 54C(2)—delete paragraph (f) and substitute:
(f) if the information is reasonably required by an energy ombudsman to
resolve a dispute between a Registered participant and a retail customer but the
information is not end-use consumer information—the energy
ombudsman;
Section 58—delete the section
29—Insertion
of Part 6 Division 1A
Part 6—after Division 1 insert:
Division 1A—Enforceable
undertakings
59A—Enforceable undertakings
(1) The AER may accept a written undertaking given by a person for the
purposes of this section in connection with a matter in relation to which the
AER has a function or power under this Law or the Rules.
(2) A person may withdraw or vary the undertaking at any time, but only
with the consent of the AER.
(3) If the AER considers that the person who gave the undertaking has
breached any of its terms, the AER may apply to the Court for an order under
subsection (4).
(4) If the Court is
satisfied that the person has breached a term of the undertaking, the Court may
make any or all of the following orders:
(a) an order directing the person to comply with that term of the
undertaking;
(b) an order directing the person to pay the Commonwealth an amount up to
the amount of any financial benefit that the person has obtained directly or
indirectly and that is attributable to the breach;
(c) an order that the Court considers appropriate directing the person to
compensate any other person who has suffered loss or damage as a result of the
breach;
(d) any other order that the Court considers appropriate.
30—Amendment
of section 60—Time limit within which AER may institute
proceedings
(1) Section 60—delete "relevant participant" and
substitute:
person
(2) Section 60—after its present contents (now to be designated as
subsection (1)) insert:
(2) A person, other than the AER, may only institute a proceeding for a
breach of a conduct provision by another person within 6 years after the
date on which the breach occurred.
31—Amendment
of section 61—Proceedings for breaches of a provision of this Law, the
Regulations or the Rules that are not offences
Section 61—delete "relevant participant" wherever occurring and
substitute in each case:
person
32—Insertion
of sections 61A and 61B
After section 61 insert:
61A—Proceedings for declaration that a person is in
breach of a conduct provision
(1) The Court may make an order, on application by a person other than the
AER, declaring that another person is in breach of a conduct
provision.
(2) If the order declares a person to be in breach of a conduct provision,
the order may include one or more of the following:
(a) an order that the person in breach cease, within a specified period,
the act, activity or practice constituting the breach;
(b) an order that the person in breach take such action, or adopt such
practice, as the Court requires for remedying the breach or preventing a
recurrence of the breach;
(c) an order that the person in breach implement a specified program for
compliance with this Law, the Regulations and the Rules;
(d) an order of a kind prescribed by the Regulations.
(3) If a person has
engaged, or is engaging or proposing to engage in any conduct in breach of a
conduct provision, the Court may, on application by another person (other than
the AER), grant an injunction—
(a) restraining the first mentioned person from engaging in the conduct;
and
(b) if, in the Court's opinion, it is desirable to do so—requiring
the first mentioned person to do something.
(4) The power of the Court under
subsection (3) to
grant an injunction restraining a person from engaging in conduct of a
particular kind may be exercised—
(a) if the Court is satisfied that the person has engaged in conduct of
that kind—whether or not it appears to the Court that the person intends
to engage again, or to continue to engage, in conduct of that kind; or
(b) if it appears to the Court that, if an injunction is not granted, it
is likely that the person will engage in conduct of that kind—whether or
not the person has previously engaged in conduct of that kind and whether or not
there is an imminent danger of substantial damage to any person if the person
engages in conduct of that kind.
61B—Actions for damages by persons for breach of
conduct provisions
A person other than the AER who suffers loss or damage by conduct of
another person that was done in breach of a conduct provision may recover the
amount of the loss or damage by action against that other person in a court of
competent jurisdiction.
33—Amendment
of section 64—Matters for which there must be regard in determining amount
of civil penalty
Section 64—delete "relevant participant" wherever occurring and
substitute in each case:
person
34—Amendment
of section 67—Conduct in breach of more than one civil penalty
provision
Section 67—delete "relevant participant" wherever occurring and
substitute in each case:
person
Section 68—delete the section and substitute:
68—Persons involved in breach of civil penalty
provision or conduct provision
(a) aid, abet, counsel or procure a breach of a civil penalty provision or
conduct provision by another person; or
(b) be in any way directly or indirectly knowingly concerned in, or a
party to, a breach of a civil penalty provision or conduct provision by another
person.
(2) This Law applies to a person who breaches
subsection (1)
in relation to a civil penalty provision or conduct provision as if the person
were a person who has breached the civil penalty provision or conduct
provision.
68A—Attempt to breach civil penalty
provision
A person who attempts to commit a breach of a civil penalty provision
commits a breach of that provision.
36—Amendment
of section 69—Civil penalties payable to the
Commonwealth
Section 69—delete "relevant participant" and substitute:
person
37—Amendment
of section 74—Power to serve a notice
Section 74—delete "relevant participant" wherever occurring and
substitute in each case:
person
38—Amendment
of section 75—Form of notice
Section 75(i)—delete "relevant participant" and substitute:
person
39—Amendment
of section 79—Withdrawal of notice
Section 79(1) and (2)—delete "relevant participant" wherever
occurring and substitute in each case:
person
40—Amendment
of section 81—Payment expiates breach of civil penalty
provision
Section 81—delete "relevant participant" and substitute:
person
41—Amendment
of section 83—Conduct in breach of more than one civil penalty
provision
Section 83—delete "relevant participant" wherever occurring and
substitute in each case:
person
Section 86—delete the section and substitute:
86—Corporations also in breach if officers and
employees are in breach
If an officer or employee of a corporation commits an act in their capacity
as officer or employee of the corporation that would, if that act were committed
by the corporation, constitute a breach of a provision of this Law, the
Regulations or the Rules, the corporation is taken to have contravened that
provision.
After section 90C insert:
90D—South Australian Minister may make initial
Rules relating to implementation of NERL and NERR
(1) The Minister in
right of the Crown of South Australia administering Part 2 of the National
Electricity (South Australia) Act 1996 of South Australia (the
South Australian Minister) may make Rules for or with respect to
the following:
(a) retail support obligations between regulated distribution system
operators and retailers;
(b) credit support arrangements between regulated distribution system
operators and retailers;
(c) connection services;
(d) any other matter consequential on the making of the National Energy
Retail Law or the
National
Energy Retail Rules or on the application of that Law or those Rules in
a participating jurisdiction.
(2) The South Australian Minister may make Rules that amend the Rules made
under
subsection (1) for
any purpose that is necessary or consequential on the application of the
National Energy Retail Law or the National
Energy Retail Rules in a participating jurisdiction.
(3) Rules in the nature of a derogation may be made under this section
even though there may not have been a request for a derogation.
(4) Section 34(3) applies to Rules made under this section in the same way
as it applies to Rules made by the AEMC.
(5) As soon as
practicable after making Rules under this section, the South Australian Minister
must—
(a) publish notice of
the making of the Rules in the South Australian Government Gazette;
and
(b) make the Rules publicly available.
(6) The notice referred to in
subsection (5)(a)
must state—
(a) the date on which the Rules commence operation; or
(b) if different Rules will commence operation on different dates, those
dates.
(7) Rules may only be made under this section on the recommendation of the
MCE.
(8) Rules cannot be made under this section once any one of the
participating jurisdictions applies the National Energy Retail Law as a
law of that jurisdiction.
44—Amendment
of section 91B—AEMC may make Rules that are consequential to a Rule
request
Section 91B(1)—delete the subsection and substitute:
(1) Despite section 91(2), the AEMC may, having regard to a request to
make a Rule under section 91(1), make a Rule under this Law, the National Gas
Law or the National Energy Retail Law that is necessary or
consequential, or corresponds, to the Rule.
45—Amendment
of section 120—Immunity in relation to failure to supply
electricity
Section 120—after subsection (2) insert:
(2A) Subsection (2) does not apply in relation to an agreement between a
retailer, or a regulated distribution system operator, and a person who is a
small customer within the meaning of the National Energy Retail
Law.
46—Amendment
of section 136—Compliance with access determination
Section 136—at the end of the section insert:
Note—
This section is a civil penalty provision.
47—Amendment
of section 157—Preventing or hindering access
Section 157(1)—at the end of the subsection insert:
Note—
Subsection (1) is a civil penalty provision.
48—Amendment
of Schedule 1—Subject matter for the National Electricity
Rules
(1) Schedule 1—after item 26K insert:
Sale and supply of electricity to retail
customers
26L Credit support arrangements between regulated distribution system
operators and retailers, including the financial obligations of regulated
distribution system operators and retailers to support the sale and supply of
electricity to retail customers.
26M Charges for the provision of connection services.
(2) Schedule 1, item 34(b)—delete "(within the meaning of section
53)" and substitute:
within the meaning of section 55
49—Amendment
of Schedule 3—Savings and transitionals
Schedule 3—after Part 10 insert:
Part 11—Application of National Energy Retail Law
amendments
24—Application of National Energy Retail Law
amendments
The amendments made to this Law by the Statutes
Amendment (National Energy Retail Law) Act 2010 of South Australia do
not apply in a participating jurisdiction until the National Energy Retail
Law is applied in that jurisdiction as a law of that jurisdiction.
Part 4—Amendment
of National Gas Law
50—Amendment
of section 2—Definitions
(1) Section 2—insert the following definitions in alphabetical
order:
distributor means, except where elsewhere defined in this
Law, a service provider who owns, operates or controls a covered pipeline that
is a distribution pipeline;
energy ombudsman has the same meaning as in the National
Energy Retail Law;
National Electricity Law means the National Electricity
Law set out in the Schedule to the
National
Electricity (South Australia) Act 1996 of South
Australia;
National Electricity Rules has the same meaning as in the
National Electricity Law;
National Energy Retail Law means the National Energy
Retail Law set out in the Schedule to the
National
Energy Retail Law (South Australia) Act 2010 of South
Australia;
National Energy Retail Rules has the same meaning as in the
National Electricity Law;
retail customer means a person to whom natural gas is sold
for premises by a retailer.
retailer means a person who is the holder of a retailer
authorisation issued under the National Energy Retail Law in respect of
the sale of gas;
(2) Section 2, definition of end user—delete the
definition and substitute:
end user means a person who acquires natural gas for
consumption purposes, and includes a retail customer;
(3) Section 2, definition of initial National Gas
Rules—delete "or 294B" and substitute:
, 294B or 294C
(4) Section 2, definition of recognised energy industry
ombudsman—delete the definition
(5) Section 2—after its present contents (now to be designated as
subsection (1)) insert:
(2) A reference in this Law to an end user includes a reference to a
prospective end user.
51—Amendment
of section 6—Meaning of regulatory obligation or
requirement
(1) Section 6(1)(b)—after subparagraph (i) insert:
(ia) the National Energy Retail Law or the National
Energy Retail Rules; or
(2) Section 6(2)(b)—after "the Rules" insert:
, the National Energy Retail Law or the National
Energy Retail Rules1
(3) Section 6(2), Note—delete the Note and substitute:
Notes—
1 See also section 24(2)(b).
2 The RoLR cost recovery scheme is dealt with under Part 6 of the
National Energy Retail Law.
After section 8 insert:
8A——Nominated
distributors
(1) The regulations under the application Act of a participating
jurisdiction (a local regulation) may—
(a) nominate an entity, being an entity that is licensed or otherwise
authorised under the jurisdictional gas legislation of that jurisdiction to
operate a distribution pipeline that is not a covered pipeline, as an entity to
which this section applies (the nominated distributor);
and
(b) apply to the nominated distributor specified provisions of the Rules
that relate to the following matters:
(i) the connection of premises of retail customers;
(ii) retail support obligations between distributors and
retailers;
(iii) credit support arrangements between distributors and
retailers.
(2) The application of any such specified provisions of the Rules to the
nominated distributor is subject to such modifications as may be specified in
the local regulation.
(3) The nominated distributor—
(a) must comply with the Rules to the extent that the Rules are applied by
the local regulation to the nominated distributor; and
(b) may, to the extent that the Rules apply to the nominated distributor,
be proceeded against under this Law for any breach of those Rules.
(4) A nomination of an entity by a local regulation may be made
for—
(a) the whole or a specified part of the geographical area of a
jurisdiction; or
(b) the whole or a specified part of the distribution pipeline that is
operated by the entity,
or for both.
(5) The Minister responsible for administering the application Act (other
than the application Act of South Australia) under which a local regulation
referred to in this section is made is to make arrangements for notice of the
making and publication of the regulation to be published for information in the
South Australian Government Gazette.
53—Insertion
of Chapter 1 Part 5
Chapter 1—after Part 4 insert:
Part 5—Corporations Act
displacement
26A—Corporations Act
displacement
(1) The Regulations may declare a relevant provision to be a Corporations
legislation displacement provision for the purposes of section 5G of the
Corporations Act 2001 of the Commonwealth in relation to the provisions
of Chapter 5 of that Act.
(2) In this section—
relevant provision means a provision of the Rules that
relates to any of the following:
(a) the functions of the AEMO under procedures relating to defaults by
retailers;
(b) the application (or drawing on) of credit support held by a
distributor in respect of a retailer who is the subject of a RoLR event within
the meaning of Part 6 of the National Energy Retail Law.
54—Amendment
of section 64—Preparation of service provider performance
reports
Section 64—after subsection (4) insert:
(4A) Any information that is used to prepare a report under this section
may be used by the AER in preparing any report under the National Energy
Retail Law or the
National
Energy Retail Rules, including (but not limited to) a retail market
performance report under Division 2 of Part 12 of that Law.
Section 66—delete the section and substitute:
66—Use of information provided under a notice under
section 42 or a regulatory information instrument
The AER may use information provided to it by a person in compliance with a
notice under section 42 or a regulatory information instrument for any
purposes connected with the performance or exercise of a function or power of
the AER under—
(a) this Law or the Rules; or
(b) the National Electricity Law or the National Electricity
Rules; or
(c) the National Energy Retail Law or the National
Energy Retail Rules.
56—Amendment
of section 68—AER enforcement guidelines
Section 68(1)—after paragraph (b) insert:
or
(c) accepting an enforceable undertaking under
section 230A.
57—Insertion
of sections 68A and 68B
After section 68 insert:
68A—Single documentation
(1) This section applies if the AER is authorised to prepare a document
under this Law or the Rules for a purpose and is also authorised to prepare a
document or documents under any of the following:
(a) the National Electricity Law;
(b) the National Electricity Rules;
(c) the National Energy Retail Law;
(d) the National
Energy Retail Rules,
for the same or a similar, related or corresponding purpose.
(2) The AER may satisfy the requirements of this Law or the Rules
regarding the document under this Law or the Rules by preparing and making (and
where relevant publishing) a single document.
Note—
See also section 28ZH of the National Electricity Law and
section 219 of the National Energy Retail Law.
68B—Use of information
(1) The AER may use the information obtained under this Law or the Rules
for a purpose connected with the performance or exercise of a function or power
of the AER under any of the following:
(a) the National Electricity Law;
(b) the National Electricity Rules;
(c) the National Energy Retail Law;
(d) the National
Energy Retail Rules.
(2) The AER may use the information obtained under any such Law or Rules
for a purpose connected with the performance or exercise of a function or power
of the AER under this Law or the Rules.
(3) This section does not limit any other provision of this Law that
provides for the use of information obtained under this Law or the
Rules.
Note—
See also section 28ZI of the National Electricity Law and
section 220 of the National Energy Retail Law.
58—Amendment
of section 74—Subject matter for National Gas Rules
(1) Section 74(1)(a)—after subparagraph (vii) insert:
(viii) the connection of premises of retail customers; and
(2) Section 74(1)—after paragraph (a) insert:
(aa) facilitating and supporting the provision of services to retail
customers; and
59—Amendment
of section 91A—AEMO's statutory functions
Section 91A(1)—after Note 3 insert:
4 AEMO has
additional functions and powers under the National Energy Retail Law and
the
National
Energy Retail Rules.
60—Amendment
of section 91GC—Disclosure required or permitted by law
etc
Section 91GC(2)—delete paragraph (g) and substitute:
(g) if the information is reasonably required by an energy ombudsman to
resolve a dispute between a Registered participant and a retail customer but the
information is not end-use consumer information—the energy
ombudsman;
After section 178 insert:
178A—Application of this Chapter to disputes
arising under the Rules
The provisions of this Chapter applicable to the determination of an access
dispute apply, subject to such modifications as may be specified in the Rules,
to the determination of any dispute arising under any provision of the Rules
specified in the Rules for the purposes of the section.
62—Insertion
of Chapter 8, Part 1A
Chapter 8—after Part 1 insert:
Part 1A—Enforceable
undertakings
230A—Enforceable undertakings
(1) The AER may accept a written undertaking given by a person for the
purposes of this section in connection with a matter in relation to which the
AER has a function or power under this Law or the Rules.
(2) A person may withdraw or vary the undertaking at any time, but only
with the consent of the AER.
(3) If the AER considers that the person who gave the undertaking has
breached any of its terms, the AER may apply to the Court for an order under
subsection (4).
(4) If the Court is satisfied that the person has breached a term of the
undertaking, the Court may make any or all of the following orders:
(a) an order directing the person to comply with that term of the
undertaking;
(b) an order directing the person to pay the Commonwealth an amount up to
the amount of any financial benefit that the person has obtained directly or
indirectly and that is attributable to the breach;
(c) an order that the Court considers appropriate directing the person to
compensate any other person who has suffered loss or damage as a result of the
breach;
(d) any other order that the Court considers appropriate.
63—Amendment
of section 232—Proceedings for declaration that a person is in breach of a
conduct provision
Section 232(4)(b)—after "if the person" insert:
engages
After section 294B insert:
294C—South Australian Minister may make initial
Rules and Retail Market Procedures relating to implementation of NERL and
NERR
(1) The Minister in right of the Crown of South Australia administering
Part 2 of the National
Gas (South Australia) Act 2008 of South Australia (the South
Australian Minister) may—
(a) make Rules for or with respect to the following:
(i) retail support obligations between service providers and
retailers;
(ii) credit support arrangements between service providers and
retailers;
(iii) the connection of premises of retail customers;
(iv) any other matter consequential on the making of the National
Energy Retail Law or the
National
Energy Retail Rules or on the application of that Law or those Rules in
a participating jurisdiction; and
(b) make Retail Market Procedures.
(2) The South Australian Minister may make Rules or Retail Market
Procedures that amend the Rules or Retail Market Procedures (as the case
requires) made under subsection (1) for any purpose that is necessary or
consequential on the application of the National Energy Retail Law or the
National
Energy Retail Rules in a participating jurisdiction.
(3) Section 74(3) applies to Rules made under this section in the same way
as it applies to Rules made by the AEMC.
(4) As soon as
practicable after making Rules or Retail Market Procedures under this section,
the South Australian Minister must—
(a) publish notice of
the making of the Rules or Procedures in the South Australian Government
Gazette; and
(b) make the Rules or Procedures publicly available.
(5) The notice referred to in
subsection (4)(a)
must state—
(a) the date on which the Rules or Retail Market Procedures commence
operation; or
(b) if different Rules or Procedures will commence operation on different
dates, those dates.
(6) Rules or Retail Market Procedures may only be made under this section
on the recommendation of the MCE.
(7) Rules or Retail Market Procedures cannot be made under this section
once any one of the participating jurisdictions applies the National Energy
Retail Law as a law of that jurisdiction.
(8) A reference in this section to Retail Market Procedures includes a
reference to RoLR Procedures within the meaning of Part 6 of the
National Energy Retail Law.
65—Amendment
of section 297—AEMC may make Rules that are consequential to a Rule
request
Section 297(1)—delete the subsection and substitute:
(1) Despite section 295(2), the AEMC may, having regard to a request to
make a Rule under section 29(1), make a Rule under this Law, the National
Electricity Law or the National Energy Retail Law that is necessary
or consequential, or corresponds, to the Rule.
66—Amendment
of Schedule 1—Subject matter for the National Gas
Rules
After item 36 insert:
Sale and supply of gas to customers
36A Credit
support arrangements between service providers and retailers, including the
financial obligations of service providers and retailers to support the sale and
supply of natural gas to retail customers.
36B Charges
for the connection of premises of retail customers.
67—Amendment
of Schedule 3—Savings and transitionals
Schedule 3—after Part 12 insert:
Part 13—Application of National Energy Retail Law
amendments
88—Application of National Energy Retail Law
amendments
The amendments made to this Law by the Statutes
Amendment (National Energy Retail Law) Act 2010 of South Australia do
not apply in a participating jurisdiction until the National Energy Retail
Law is applied in that jurisdiction as a law of that jurisdiction.
Schedule 1—Statute
Law Revision
Act amended |
How amended |
---|---|
Delete "Trade Practices Act 1974" wherever occurring and substitute
in each case: |
|
Delete "Trade Practices Act 1974" wherever occurring and substitute
in each case: |